Page:Harvard Law Review Volume 4.djvu/353

337 NOTES. 337 requiring abutters to pay two-thirds of the cost of paving a street was held unconstitutional, though it left the other third to come from the pub- lic, as disregarding the principle that local assessments must be based solely on benefit to the person assessed.^ And in Pennsylvania also, though the Constitution contained no express restraint on the taxing power, a similar statute was held unconstitutional in Hamniett v. Philadelphia, 65 Pa. 146, on the ground that it was inconsistent with the idea of equality necessarily involved in the conception of a tax. The reasoning of these cases would seem to apply a fortiori to Mayor Matthews's project. Can a State forbid aliens to sell liquor? The Court of Appeals of Maryland has held in Trageser v. Gray, 20 Atl. Rep. 905, that it can; but the decision can be supported only by putting the liquor traffic on peculiar ground. It would scarcely be asserted that a State could, under the Fourteenth Amendment, enact that no alien should carry on the trade of a butcher or baker; and Yick Wo v. Hopkins, 118 U. S. 356,^ shows plainly enough that a similar restriction on the laundry business is uncon- stitutional. Why, then, is it valid in the liquor trade? The reasoning in Trageser v. Gray is something as follows: A State can prohibit the sale of liquor altogether, and therefore no man, alien or citizen, has a "natural right " to sell it. This right to prohibit necessarily includes the right to regulate; and into the reasonableness of the regulation the court cannot inquire. The Fourteenth Amendment does not compel an "equal dis- tribution of favors," because that amendment imposed no restraints on the police power of the States. "We are unable," says the court, "to conceive that any one, citizen or alien, can acquire rights which could in any way control, impair, impede, limit, or diminish the police power of a State. Such power is original, inherent, and exclusive. It has never been surrendered to the general government, and never can be surrendered, without imperilling the existence of civil society." This treatment of the police power indicates the fallacy which, it is respectfully submitted, underlies the decision in Trageser v. Gray. The court says that no one can acquire rights which in any way limit the police power of a State ; yet by the Thirteenth Amendment several million slaves acquired rights destructive of the institution which was a genera- tion ago the typical illustration of the police power. And so the Four- teenth Amendment, though of course leaving with the States the power to regulate their internal affairs, and so the great mass of legislative powers included in the term "police power," provided that in the exercise of this or any other power no person should be deprived of the equal protec- tion of the laws. The Legislature may prohibit the liquor trade, i. e.,. make a lawful trade unlawful; otherwise it remains lawful, subject, like other lawful trades, to regulation by the State. But whatever else the State may accomplish by this regulation, it must stop short of withholding the equal protection of the laws; and when the fact that a man is an alien is made a ground for excluding him from a trade open to others, this clause of the Fourteenth Amendment seems to apply with the same force ^ The court added that it would be otherwise in the case of a sidewalk, where the abutter could probably be charged with the sole expense of maintaining it; but the reason for this was distinctly stated to be the difference between the sidewalk and the rest of the street. 2 See 4 Harv. L. Rev. 236.